Vehicle Forfeiture

Vehicle Forfeiture (Asset/Cash Forfeiture)

Vehicle forfeiture is becoming more and more common, as police departments everywhere seek alternative means of generating revenue. And yes, even though you're "presumed innocent", that won't stop the government from pursuing your cash/car long before (or if) they ever obtain a conviction. Forfeiture is guided by the forfeiture statute, found in Section 932.701-932.707 of the Florida Statutes. We'll be talking about vehicles, but the same rules apply to the forfeiture of cash or other assets.

The Florida Contraband Forfeiture Act makes it tough to get your car back, but it can be done, with the right attorney. Really, your best shot is to negotiate with the sheriff's office. They will charge you for the return of your car, depending upon what it's worth. Every sheriff's office is different, some will discount Kelly Blue Book value by 50-75%, so if your car's Kelly Blue Book is $10,000, they may want $2,500-$5,000 for it's return (hiring a law firm take your case all the way to a civil jury trial may cost $10,000-$15,000....). Sometimes, no offer will be made, and the car is turned over to the bank that financed the car. This can be a problem, as the bank may not return the car unless you pay the balance in full (they should know that if you could pay the balance in full, why would you borrow the money from them in the first place??). Remember, these are the same banks that you bailed out with your hard earned tax dollars....

ASSET/VEHICLE FORFEITURE PROCEDURE

Here's some procedural info. First of all, once law enforcement takes your car, the government must send notice explaining your right to a Preliminary Adversarial Hearing, whereby the sheriff's office must prove by clear and convincing evidence that the car is subject to forfeiture (See Below for an example "Notice" and example "Request for hearing"). This is a pretty easy hearing for the Sheriff's office, unless you have a fourth amendment suppression issue, illegal stops are the best way to win a Preliminary Adversarial Hearing. For example, if no probable cause existed to stop or search the car, you may get your car back at the preliminary hearing. The judge's ruling at the preliminary hearing will not effect a future lawsuit against the sheriff's office for the return of your vehicle, so don't worry.

Once you've requested a preliminary hearing, the sheriff's office should set the hearing with a judge within 10 days. The sheriff's office must prove a 'nexus' between your car/cash and illegal activity, creating a reasonable belief that the car was used or intended to be used in violation of the Contraband Forfeiture Act. For example, in one car seizure case, no drugs were ever found in the car, nor were drug deals made inside of the car, but because the defendant used the car to go to and from drug transactions, the car was subject to forfeiture. (See Duckham v. State, 478 So.2d 347 (1985)).

A common defense is known as the "innocent owner". In this case, if you can prove that the owner of the vehicle did not know the car was being used in criminal activity, you may get the car back. If the owner 'should have known' the car was being used in criminal activity, the forfeiture may be upheld. Furthermore, the seizure of an expensive car may amount to an execessive fine, and this analysis involves both a 'proportionality test' and an 'instrumentality test'. Under a proportionality test, compare at the fines that could be imposed versus the value of the motor vehicle. The instrumentality test examines how the car was used. As a real life example, the court in In Re: 1990 Chevrolet Blazer (684 So.2d 197 (Fla. 2d DCA 1996)) held that a car's use to carry marijuana and to provide a private area to smoke marijuana was insufficient to meet the instrumentality test.

So, as you can see, there are tons of legal issues here. Hire a local attorney to negotiate for the return of your car. It's worth it....

example Notice of Seizure listed below

COUNTY SHERIFF'S OFFICE

NOTICE OF SEIZURE AND RIGHT TO ADVERSARIAL PRELIMINARY HEARING

DATE:______________TO: DEFENDANT AND/OR OWNER OF VEHICLE

The County Sheriff's Office has seized your 2009 Lexus ES350 Red (Property) pursuant to the Florida Contraband Forfeiture Act, Sections 932.701-932.704, Florida Statutes (Supp. 1992) and a forfeiture action may be filed against this property. All persons who have a legal interest in the subject property may request an adversarial preliminary hearing in the circuit court of this County. If you do not request an adversarial preliminary hearing, you still have the right to contest a forfeiture action at a later date. Pursuant to Florida Statute 932.703, if you would like to request an adversarial preliminary hearing, your request must be made to the County Sheriff's Office in writing, by certified mail, return receipt requested, within fifteen (15) days of receiving this Notice.

___________________ _____________________ Received By Date

I HEREBY CERTIFY that a true copy has been hand delivered/mailed certified, to DEFENDANT this ___ day of __________ (month), 2010.

________________ Deputy

________________ Deputy Phone #

example REQUEST FOR ADVERSARIAL PRELIMINARY HEARING listed below

IN THE CIRCUIT COURT OF THE XYZ JUDICIAL CIRCUIT OF FLORIDA,IN AND FOR SUCH&SUCH COUNTY

CASE NO:

IN RE: FORFEITURE OF

2009 LEXUS ES350 REDDEFENDANT

REQUEST FOR ADVERSARIAL PRELIMINARY HEARING

The undersigned, in accordance with the requirements of the Florida Contraband Forfeiture Act (Sections 932.701-932.707, Florida Statutes, Chapter 92-54, Laws of Florida), does hereby file this request for an adversarial preliminary hearing in this matter. It is requrested that such a hearing be scheduled within ten (10) days of the date that this request is filed and that notice of the time, date and place of such hearing be mailed to the undersigned at the address given below as soon as possible.

We serve the following localities: Orange County including Winter Garden, Winter Park, Apopka, Maitland, Ocoee, Orlando, and Windermere; Brevard County including Melbourne, Cocoa, and Merritt Island; Osceola County including Kissimmee and St. Cloud; and Seminole County including Sanford, Longwood, Casselberry, and Lake Mary.